[council] Re: [domains-gen] Vint Cerf/ICANN confirm my interpretation of .biz/info/org proposed contracts -- tiered/differential domain pricing would not be forbidden

[Ross Rader <ross@xxxxxxxxxx>]

Yes of course, but the price for the Registry Service (new registrations 
and renewal registrations) would have to increase equally in order for 
the service being provided by the Registry to stay the same. They are 
allowed to price whatever they want for new registrations and renewals, 
which is a blanketing statement. Singling out specific domains for 
different pricing treatment would, IMHO, require the deployment of a new 
registry service.
And keep in mind that I'm not arguing against your view, I'm simply 
stating that a) I hope you are wrong and b) you should be wrong and c) 
that an ICANN that thinks you are right is completely and totally out of 
touch with reality.
George Kirikos wrote:
> Hi again,
>
> [I can't post to the Registrars or Council lists, so someone would have
> to forward it]
>
> --- Ross Rader <ross@xxxxxxxxxx> wrote:
> > George - I  understand what you've laid out, but your analysis
> > ignores 
> > the fact that the contract is for the provisioning of initial 
> > registration and renewal of those registration of domain names, not 
> > specific domain names. I don't see how one could possible interpret
> > the 
> > definition of these services to include tiered pricing for the
> > services 
> > based on new criteria that don't fix the existing definition of the 
> > current registry services.
> > In other words, the registries have a contract to provide
> > registration 
> > services for all names in the namespace at the prices included in the
> > agreement.
> They are still providing registration services for all names. They are
> still providing it for prices that are "in the agreement".
>
> The contracts specifically state an initial fee, one that is identical
> for all domains. However, registries are free to amend the pricing
> schedule in any way they see fit, as long as it is not in a manner
> forbidden by the contract.
>  
> > They do not have a contract for the provision of some of these
> > services 
> > at one price, and the provision of the same service to other people
> > at a 
> > different price. i.e. there is no registry service that provides for
> > the 
> > sale of specific domain names, there is only a registry service that 
> > provides for the sale of new registrations and renewed registrations
> > in 
> > the entire namespace. There is a huge difference between the sale of
> > a 
> > domain name, and registration in a namespace.
> A price schedule is perfectly consistent with pages 80 and 81 of:
>
> http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf
>
> The first sentence of page 80 is:
>
> "Initial Registration. Registrar agrees to pay the non-refundable
> amounts as set forth 
> below: "
> and it contains a box below.
>
> Registrar announces, and gives 6 months notice, that the box has
> changed as follows (as an example):
>
> sex.biz -- $100,000/yr
> music.biz -- $60,000/yr
> google.biz -- $1 billion/yr
> kirikos.biz -- $100 billion/yr <<--- Neustar loves me :)
> ghkghs.biz -- 10 cents/yr
>
> These sure look like "non-refundable amounts" to me, and are "set forth
> below".
>
> The words on page 81 are "Registry Operator reserves the right to
> increase the Fees set forth above prospectively upon six months advance
> notice to Registrar."
>
> A price schedule fits that definition. That table of values can be
> called "fees". There can be many other possible forms. Only forms that
> do not provide equal access to all registrars are forbidden, i.e. due
> to section 7.1 of page 17:
>
> http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf
>
>  Fees have been increased, with six months notice. They have increased
> by varying amounts (indeed, some have DECREASED, but that's ok too).
> The contract does not forbid this.
>  
> > I can't believe that Vint has lost track of this distinction. And if
> > he 
> > has, if ICANN has, we are all in much worse shape than we thought.
> "3.1 (b)(v) In addition to the other limitations on Consensus 
> Policies, they shall not: 
> 3.1 (b)(v)(A) prescribe or limit the price of Registry Services;"
> (from page 4 of
> http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf )
>
> ICANN can't prescribe
>
> http://www.answers.com/prescribe&r=67
>
> "To set down as a rule or guide; enjoin. See synonyms at dictate.; To
> order the use of (a medicine or other treatment). To establish rules,
> laws, or directions."
>
> or limit
>
> http://www.answers.com/limit
>
> "To confine or restrict within a boundary or bounds. ; To fix
> definitely; to specify."
>
> the price of registry services. A pricing schedule is perfectly
> consistent with the meaning of those words, i.e. not forbidden. How
> else would volume pricing be able to be implemented, except through a
> table of some sort, a modification of page 80's box? Since there do not
> appear to be any words that prescribe or place limits on what goes in
> the box (besides 7.1 for equal access amongst registrars),
> differential/tiered domain by domain pricing can go into that box.
>
> All one needs to do is find the specific words in the contract that
> forbid that confine how that box can change. John Jeffrey couldn't,
> neither could external counsel, or 2 other registrars (who've not gone
> public so I won't name them), that's why Vint confirmed the
> interpretation. I'd be happy if there was a limit on how that box could
> change. Until someone finds that limit by pointing to a line in the
> contract, or adds a term to the contract to create a limitation, then
> differential/tiered pricing might become a reality.
>
> I asked Jeff Neuman on the GA list directly, after a series of messages
> back and forth (all archived) precisely the following:
>
> http://gnso.icann.org/mailing-lists/archives/ga/msg04301.html
>
> "As a sign of good faith, would Neustar agree as a simple matter that
> the draft contracts be amended to forbid differential pricing on a
> domain-by-domain basis, i.e. to forbid .tv-style non-neutral and
> discriminatory pricing?"
>
> Jeff chose that moment to stop participation in the discussions (he
> hasn't posted since).
>
> One can read the full archives,
> http://gnso.icann.org/mailing-lists/archives/ga/index.html , starting
> from July 29th or so, and working to the present.
>
> Registry says:
>
> http://gnso.icann.org/mailing-lists/archives/ga/msg04294.html
>
> " In other words, do you really think .BIZ could get away with raising
> prices above
>  that for a .com domain name and survive?  We do not."
>
> I challenge him directly on that, i.e. if what he says is true, then
> why not agree to caps? You can follow the thread and see where that
> went.
>
> If the registries agree to amend the contracts, there is no issue. i.e.
> one can clarify the language to be more explicit and not permit these
> differing opinions (in which I appear to be in the majority view at
> present, although occasionally the majority is incorrect). With
> language that has perfect clarity, there'd be unanimity as to what the
> contract allows and does not allow. Ask yourself, why won't the
> registries agree to clarify it? Is it because the contract is "perfect"
> and can't be improved upon, or is it because they agree with my
> interpretation, Vint's interpretation, John Jeffrey's interpretation,
> external counsel's interpretation, and want to reserve the right to do
> as they please later?
>
> 3 phone calls, one to each registry operator, to see if they wish to
> add clarity to the contract. See what they say. Would ICANN have any
> reason to not accept that added clarity? What's their great
> fear....that, egads, registrants might be protected??!??? 
>
> Sincerely,
>
> George Kirikos
> http://www.kirikos.com/
>
> > George Kirikos wrote:
> > > Hi Ross,
> > >
> > > Here's my analysis of the .biz variation of the contract (the .info
> > and
> > > .org are similar, albeit different page numbers, etc.).  I'm not a
> > > member of the Registars Constituency or Council lists, so you'd
> > need to
> > > forward this reply to them.
> > >
> > > You can confirm with John Jeffrey or Vint Cerf that they don't
> > disagree
> > > with the interpretation, namely that nothing in the new contracts
> > > forbids tiered/differential pricing on a domain by domain basis:
> > >
> > > A] The contract between the registry and registrars must be "non
> > > discriminatory", as per Article 7 (section 7.1) of the main
> > contract
> > > (page 17 of the .biz version):
> > >
> > > http://www.icann.org/tlds/agreements/biz/registry-agmt-28jul06.pdf
> > >
> > > But, if you read the language very carefully, all it talks about is
> > > equal access, equal treatment. It does not forbid a pricing
> > schedule
> > > for different domain names (i.e. .tv has this differential
> > pricing). 
> > > B] When one views pages 80 and 81 of the Appendix document (Exhibit
> > E):
> > >
> http://www.icann.org/tlds/agreements/biz/registry-agmt-app-28jul06.pdf
> > > the last sentence does not prescribe any restriction on how prices
> > can
> > > increase, or forbid differential pricing. Indeed, a
> > profit-maximizing
> > > registry could immediately announce that the fees in Appendix E are
> > > replaced by a table of values, e.g. sex.biz = $100,000/yr,
> > music.biz =
> > > $50,000/yr, gsjkhgkjshgs.biz = $1/yr, and so on, or other formulas.
> > > Remember, volume pricing is already allowed by the existing
> > contracts.
> > > That volume pricing is a schedule, too (albeit of a different
> > style).
> > > There's no restriction on the type of schedule, it just must be
> > > consistent with A] above (i.e. registry can't have a different
> > price
> > > schedule for Tucows, GoDaddy, NSI, etc.).
> > >
> > > C] Nothing  in Section 4.1 (page 64) prevents it either. And since
> > > 3.1(b)(V)(A) [page 4 of the main contract] prevents consensus
> > policies
> > > from influencing pricing, one can't fix this problem later.
> > >
> > > D] The only place I could find where fees are fixed on a domain by
> > > domain basis are the fees the registry operator pays to ICANN (i.e.
> > > page 18 of the main contract, section 7.2). Of course, the
> > registries
> > > seek cost certainty and non-discrimination for themselves. :) This
> > > doesn't affect pricing to registrars, though, and through them to
> > > registrants --- it would still
> > > appear that the registries could introduce price schedules on a
> > > differential domain-by-domain basis (in any manner they choose;
> > e.g. if
> > > they don't like the owners of pussy.org, a porn site, they  could
> > make
> > > the price be $1 billion/yr to force out the owner, albeit after a
> > > 10-year time lag), if my interpretation is correct and I didn't
> > miss
> > > anything.
> > >
> > > E] There are lots of other problems with these new contracts (i.e.
> > > presumptive  renewal, elimination of price caps, use of traffic
> > data, 
> > > etc.), so even if  the above issue is "fixed", I'd be against them,
> > > especially before the DoC  rules on the .com settlement agreement,
> > and
> > > the lawsuits (e.g. by www.cfit.info) are concluded.
> > >
> > > ICANN's lawyers have even said in the CFIT court case documents
> > that
> > > price controls in a single supplier market are pro-competitive, so
> > > lifting the price caps is very hypocritical. These bad new
> > contracts
> > > would create a dangerous precedent for VeriSign to exploit in
> > future
> > > contract negotiations over operation of the .com registry. I
> > elaborated
> > > on this at:
> > >
> > > http://forum.icann.org/lists/biz-tld-agreement/msg00009.html
> > >
> > > Note that this issue could easily be solved, the loophole removed,
> > by
> > > having ICANN add one sentence to each contract, dictating that
> > renewal
> > > prices must be identical for all domains. Ask yourself why ICANN
> > and
> > > the registries won't add that sentence. I've been pressing them for
> > 3+
> > > weeks on this issue, and they're sticking to their guns, even after
> > > agreeing on my interpretation of what's not forbidden. Their
> > position
> > > is that the 6-month price increase notice period and the ability to
> > > renew for 10 years is sufficient to prevent a "suicide" move by
> > > registries. Ask yourself if you're willing to trust registries
> > won't
> > > open Pandora's Box. I'll be around in 10+ years, God willing. I'll
> > bet
> > > current ICANN Board members won't be on the board in 10 years.
> > >
> > > BTW, see the eloquent comments of Frank Schilling (of
> > > NameAdministration), who has also posted on this matter:
> > >
> > > http://forum.icann.org/lists/biz-tld-agreement/msg00005.html
> > >
> > > Sincerely,
> > >
> > > George Kirikos
> > > http://www.kirikos.com/
> > >
> > > --- Ross Rader <ross@xxxxxxxxxx> wrote:
> > >
> > > > (I have cc'ed this to both the Council and Registrar lists as
> > > > George's 
> > > > message has popped up on both of these lists and I would like to
> > hear
> > > > more from my colleagues in those circles on this subject...)
> > > >
> > > > George Kirikos wrote:
> > > > > Hello,
> > > > >
> > > > > --- JB <info@xxxxxxx> wrote:
> > > > > > Or holding an auction for a popular name to find it's market
> > > > price.
> > > > > My reading of the contracts is that they wouldn't be allowed to
> > > > hold a
> > > > > traditional English auction for the domain name, because they'd
> > > > have to
> > > > > set a price on an equal basis for all registrars. It might be
> > > > possible,
> > > > > though, as the contracts are so poorly written.
> > > > Poorly written indeed.
> > > >
> > > > I would like to hear the basis for ICANN's opinion. My read of
> > these 
> > > > contracts is very different (keep in mind that IANAL, NDIPOOTV) in
> > > > that 
> > > > the combination of the registry services provisions, and the
> > > > definition 
> > > > of the registry service itself prevents per domain price
> > > > discrimination, 
> > > > in the absence of a different registry service specifically
> > intended
> > > > to 
> > > > allow for this type of pricing.
> > > > i.e. the new contracts state;
> > > >
> > > > Main Agreement,  "3.1 (d)(iii) Registry Services are, for purposes
> > > > of this Agreement, defined as the following: (a) those
> > > > services that are both (i) operations of the registry critical to
> > > > the following tasks: the receipt of data from registrars
> > > > concerning registrations of domain names and name
> > > > servers; provision to registrars of status information relating
> > > > to the zone servers for the TLD; dissemination of TLD zone
> > > > files; operation of the registry zone servers; and
> > > > dissemination of contact and other information concerning
> > > > domain name server registrations in the TLD as required by
> > > > this Agreement; and (ii) provided by the Registry Operator
> > > > for the .biz registry as of the Effective Date as set forth on
> > > > Appendix 9; (b) other products or services that the Registry
> > > > Operator is required to provide because of the establishment
> > > > of a Consensus Policy (as defined in Section 3.1(b) above);
> > > > (c) any other products or services that only a registry
> > > > operator is capable of providing, by reason of its designation
> > > > as the registry operator; and (d) material changes to any
> > > > Registry Service within the scope of (a), (b) or (c) above.
> > > >
> > > > Appendix 8, "4.1.1 Registrar agrees to pay Registry Operator the
> > fees
> > > > set forth in Exhibit E for initial and renewal registrations and
> > > > other 
> > > > services provided by Registry Operator to Registrar (collectively,
> > > > "Fees"). Registry Operator reserves the right to increase the Fees
> > > > prospectively upon six (6) months prior notice to Registrar."
> > > >
> > > > Exhibit E to Appendix 8, "Initial Registration Fe(Per Domain Name)
> > US
> > > > $5.30, Renewal Fee (Per Domain Name) US $5.30"
> > > >
> > > > In other words, one of the existing Registry Services is providing
> > > > initial registrations in the .biz namespace. The price for this
> > > > service 
> > > > is currently $5.30. This price for this service may be revised
> > with
> > > > six 
> > > > months notice.
> > > > There are no provisions for any service that provides the registry
> > > > with 
> > > > the capability to reserve specific names and make them available
> > > > through 
> > > > other means. There are only provisions for registry services for
> > > > initial 
> > > > and renewal registrations. The wording of these provisions makes
> > it
> > > > very 
> > > > clear that the pricing of these services is for all initial and
> > > > renewal 
> > > > registrations, not for specific initial or renewal registrations
> > > > based 
> > > > on the string of the domain.
> > > > I can't for one second believe that Vint's interpretation is in
> > any
> > > > way 
> > > > correct and I'd like to hear an absolute official determination
> > based
> > > > on 
> > > > the existing definition of registry services as outlined in these 
> > > > proposed agreements. If your interpretation is correct, the entire
> > > > definition of registry services is flawed in that it would
> > basically 
> > > > mean that Registry Services includes variations on Initial and
> > > > Renewal 
> > > > registrations that aren't specifically covered in the existing
> > > > agreement 
> > > > (i.e. the registry can provide whatever variations on these two
> > > > services 
> > > > it wants without going through the Registry Services Approval
> > > > Process).
> > > >
> > > >
> > > >
> > > > Regards,
> > > >
> > > > --
> > > >
> > > >                         -rr
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >
> > > >                  "Don't be too timid and squeamish about your
> > > > actions.
> > > >                                             All life is an
> > > > experiment.
> > > >                              The more experiments you make the
> > > > better."
> > > >                          - Ralph Waldo Emerson
> > > >
> > > >
> > > > Contact Info:
> > > >
> > > > Ross Rader
> > > > Director, Research & Innovation
> > > > Tucows Inc.
> > > > t. 416.538.5492
> > > > c. 416.828.8783
> > > >
> > > > Get Started: http://start.tucows.com
> > > > My Blogware: http://www.byte.org
> > > > _______________________________________________
> > > > domains-gen mailing list
> > > > domains-gen@xxxxxxxxxxxxxxxxxx
> > > > http://discuss.tucows.com/mailman/listinfo/domains-gen
> > Regards,
> >
> > --
> >
> >                         -rr
> >
> >
> >
> >
> >
> >
> >
> >
> >                  "Don't be too timid and squeamish about your
> > actions.
> >                                             All life is an
> > experiment.
> >                              The more experiments you make the
> > better."
> >                          - Ralph Waldo Emerson
> >
> >
> > Contact Info:
> >
> > Ross Rader
> > Director, Research & Innovation
> > Tucows Inc.
> > t. 416.538.5492
> > c. 416.828.8783
> >
> > Get Started: http://start.tucows.com
> > My Blogware: http://www.byte.org
> > _______________________________________________
> > domains-gen mailing list
> > domains-gen@xxxxxxxxxxxxxxxxxx
> > http://discuss.tucows.com/mailman/listinfo/domains-gen

Regards,

--

                       -rr








                "Don't be too timid and squeamish about your actions.
                                           All life is an experiment.
                            The more experiments you make the better."
                        - Ralph Waldo Emerson


Contact Info:

Ross Rader
Director, Research & Innovation
Tucows Inc.
t. 416.538.5492
c. 416.828.8783

Get Started: http://start.tucows.com
My Blogware: http://www.byte.org